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Thread: Stafford firearm ordinance violating pre-emption?

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    Stafford firearm ordinance violating pre-emption?

    Sec. 26-1. Carrying concealed weapons
    (a)
    If any person carries about his person, hid from common observation, any pistol, revolver or other weapon designed or intended to propel a missile of any kind, dirk, bowie knife, switchblade knife, razor, slingshot, metal knucks, blackjack, any flailing instrument consisting of two (2) or more rigid parts connected in such a manner as to allow them to swing freely, which may be known as a nun chahka, nunchuck, nunchaku, shuriken or fighting chain, or any weapon of like kind, he shall be guilty of a Class 1 misdemeanor, and such weapon shall be forfeited to the county and may be seized by an officer as forfeited, and such as may be needed for law-enforcement officers, conservators of the peace or the state division of consolidated laboratory services shall be devoted to that purpose, and the remainder shall be destroyed by the officer having them in charge.

    seems to me to be in violation of:

    15.2-915. Control of firearms; applicability to authorities and local governmental agencies
    A. No locality shall adopt or enforce any ordinance, resolution or motion, as permitted by 15.2-1425, and no agent of such locality shall take any administrative action, governing the purchase, possession, transfer, ownership, carrying, storage or transporting of firearms, ammunition, or components or combination thereof other than those expressly authorized by statute. For purposes of this section, a statute that does not refer to firearms, ammunition, or components or combination thereof, shall not be construed to provide express authorization.


    unless there's an expressly authorizing statute out there allowing local govt's to regulate concealed carrying...
    Looks like maybe the ordinance stretches too far by including handgun concealed carrying in their local's concealed weapons prohibition.
    Anyone know of an expressly authorizing ordinance?

    The notes under the ordinance seem to fall short of justifying its existence as well:
    (Code 1979, 27-1)
    Cross reference— Penalty for Class 1 misdemeanor, 1-11.
    State law reference— Similar provisions and authority of circuit court to grant permit to carry concealed weapon, Code of Virginia, 18.2-308.
    Last edited by ChristCrusader; 03-10-2014 at 08:13 PM.

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    There is no office commissioned to enforce statutes against the sovereign state or its subdivisions. Preemption statutes are advisory, anile, moot and toothless.
    Last edited by Nightmare; 03-10-2014 at 08:06 PM.
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    Campaign Veteran skidmark's Avatar
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    Loosen the tinfoil

    There is nothing which prevents a local government fro enacting, within their legal scheme, a statute that exactly mirrors an existing state law. As far as I can tell via a cursory reading, that is what the Stafford ordinance does.

    Copying a state law into the county code merely allows the county to prosecute violations via an extra bite at the apple - first the county code violation, then the Code of Virginia violation - under the [specious in my opinion] notion that there is no double jeopardy because it is two different statutes.

    Perhaps User will come along with the appropriate case citations on at least the legality of passing a state law as a county ordinance.

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    Quote Originally Posted by skidmark View Post
    There is nothing which prevents a local government fro enacting, within their legal scheme, a statute that exactly mirrors an existing state law. As far as I can tell via a cursory reading, that is what the Stafford ordinance does.

    Copying a state law into the county code merely allows the county to prosecute violations via an extra bite at the apple - first the county code violation, then the Code of Virginia violation - under the [specious in my opinion] notion that there is no double jeopardy because it is two different statutes.

    Perhaps User will come along with the appropriate case citations on at least the legality of passing a state law as a county ordinance.

    stay safe.
    Just reading at face value that, "No locality shall adopt or enforce any ordinance, resolution or motion... governing the... carrying... of firearms..." with no noted exception for, 'unless it mirrors an existing state law"

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    Campaign Veteran skidmark's Avatar
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    Quote Originally Posted by ChristCrusader View Post
    Just reading at face value that, "No locality shall adopt or enforce any ordinance, resolution or motion... governing the... carrying... of firearms..." with no noted exception for, 'unless it mirrors an existing state law"
    "The Law" is the entire Code of Virginia of 1950, As Amended. You need to read and know how one part interacts with another. Unless of course you are willing to be embarassed in court.

    stay safe.
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    Regular Member TFred's Avatar
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    ChristCrusader, you are exactly right!

    Stafford County, along with many other jurisdictions, have what Skidmark calls "mirror ordinances" on the local books, which started out as copies of state laws, but which have in many cases over the years, drifted apart and are now in conflict, or at least no longer mirroring state law. In some cases, such as traffic laws, this is good because it allows the jurisdiction to keep the money extracted in the form of fines from offenders. In this case, however, I have been told that there is no financial benefit to the jurisdiction to have a copy of the concealed handgun law on the books.

    [ETA: Also, I am certain that most of the mirror ordinances concerning concealed carry were enacted well before 15.2-915 came along, and the jurisdictions have simply had no pressing reason to clean up their local ordinances. What we need in Virginia is a preemption law with real teeth, like they have in Florida.]

    With all due respect to Skid, I absolutely disagree with his assessment on the legality of such local ordinances. As you note, 15.2-915 is crystal clear:

    No locality shall adopt or enforce any ordinance, [...] other than those expressly authorized by statute.

    I have never been able to find any provision in the Code of Virgina that expressly authorizes a locality to enact a mirror ordinance concerning firearms. And don't forget this critical piece: "For purposes of this section, a statute that does not refer to firearms, ammunition, or components or combination thereof, shall not be construed to provide express authorization." So that means even if you were able to find a section of code that says localities may mirror state law in general, that section must expressly reference firearms in order for it to counter the explicit prohibition of such local ordinances provided in 15.2-915.

    Now having said all that... You haven't read through enough of the Stafford County ordinances yet. When you get to Section 26-16, you will find that Stafford has stubbornly refused to update their ordinance on the discharge of firearms to make it compliant with changes to 15.2-915.4 made in 2011. Briefly, this state law requires all jurisdictions to allow the discharge of pneumatic weapons, including BB guns, paintball guns, etc. on any private property with the owner's permission as long as due care is taken to prevent the projectiles from crossing the property boundaries.

    In spite of having been told they are in violation of the law on numerous occasions, the BoS has refused to fix their ordinances.

    Interestingly, IMO, since the local ordinance on the discharge of firearms is lumped together with pneumatic guns, according to the law that was passed, the entire section of code regulating the discharge of firearms is invalid and unenforceable.

    Apparently, Stafford has little care to keep themselves in compliance with state law.

    If you live in Stafford, maybe you want to have a go with them. Forget the County Attorney Schumate. He's worthless. Former Chairman Stimpson promised to fix this during her recent run for Lt. Governor, then once she lost at the convention, we never heard from her again. There is a new Chairman now, Jack Cavalier. Maybe he will be more responsive.

    In any case, you can also check the spreadsheet posted in this thread for the status of these kinds of issues in every jurisdiction across Virginia.

    TFred
    Last edited by TFred; 03-10-2014 at 09:44 PM.

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    Quote Originally Posted by skidmark View Post
    "The Law" is the entire Code of Virginia of 1950, As Amended. You need to read and know how one part interacts with another. Unless of course you are willing to be embarassed in court.
    heavy sigh. So do you know of a part or parts of the law that allow this ordinance, in spite of the apparent conflict with VA code?
    I'm not content with the philosophy that a layperson is unqualified to notice an apparent contradiction in the English language, and leave all such ponderings to the lawyers, judges, and politicians, for fear of being embarassed for asking a question about a code or ordinance. That's how we got from shall not be infringed to reams of infringements... by trusting them and stepping back to leave it in their enlightened hands. imho.

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    Quote Originally Posted by ChristCrusader View Post
    heavy sigh. So do you know of a part or parts of the law that allow this ordinance, in spite of the apparent conflict with VA code?
    I'm not content with the philosophy that a layperson is unqualified to notice an apparent contradiction in the English language, and leave all such ponderings to the lawyers, judges, and politicians, for fear of being embarassed for asking a question about a code or ordinance. That's how we got from shall not be infringed to reams of infringements... by trusting them and stepping back to leave it in their enlightened hands. imho.
    See my post just prior to yours. I do not believe there is any confusion whatsoever in the law, and I would need to see a cite to such before I would believe it.

    TFred

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    Quote Originally Posted by TFred View Post
    ChristCrusader, you are exactly right!

    Now having said all that... You haven't read through enough of the Stafford County ordinances yet. When you get to Section 26-16, you will find that Stafford has stubbornly refused to update their ordinance on the discharge of firearms to make it compliant with changes to 15.2-915.4 made in 2011. Briefly, this state law requires all jurisdictions to allow the discharge of pneumatic weapons, including BB guns, paintball guns, etc. on any private property with the owner's permission as long as due care is taken to prevent the projectiles from crossing the property boundaries.

    In spite of having been told they are in violation of the law on numerous occasions, the BoS has refused to fix their ordinances.

    Interestingly, IMO, since the local ordinance on the discharge of firearms is lumped together with pneumatic guns, according to the law that was passed, the entire section of code regulating the discharge of firearms is invalid and unenforceable.

    Apparently, Stafford has little care to keep themselves in compliance with state law.

    If you live in Stafford, maybe you want to have a go with them. Forget the County Attorney Schumate. He's worthless. Former Chairman Stimpson promised to fix this during her recent run for Lt. Governor, then once she lost at the convention, we never heard from her again. There is a new Chairman now, Jack Cavalier. Maybe he will be more responsive.

    In any case, you can also check the spreadsheet posted in this thread for the status of these kinds of issues in every jurisdiction across Virginia.
    TFred
    Thanks for your encouragement and link, TFred.
    I sent an email to my county supervisor (Thomas) earlier today re: the OP ordinance, who said he'd check into it and get back with me. I assumed it would be an easy fix upon confirmation of non-conformance. Obstinate, ongoing violation after notification as you describe having happened in the past perplexes me. Guess it'll be wait and see how they greet this question as posed.

    Meanwhile, I wanted to check the knowledge and perspective of fellow civilians, not necessarily trusting the conclusion that gov't would express to me.

    I'll read into the other examples you cite, and maybe if they open the door, they can be slipped in too ;-)
    Last edited by ChristCrusader; 03-11-2014 at 09:10 AM.

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    Quote Originally Posted by ChristCrusader View Post
    Thanks for your encouragement and link, TFred.
    I sent an email to my supervisor earlier today re: the OP ordinance, who said he'd check into it and get back with me. I assumed it would be an easy fix upon confirmation of non-conformance. Obstinate, ongoing violation after notification as you describe having happened in the past perplexes me. Guess it'll be wait and see how they greet this question as posed.

    Meanwhile, I wanted to check the knowledge and perspective of fellow civilians, not necessarily trusting the conclusion that gov't would express to me.

    I'll read into the other examples you cite, and maybe if they open the door, they can be slipped in too ;-)
    From the county's perspective, the air gun problem should be much more frightening. Their ordinance prohibiting vast areas of the county where one may legally discharge a firearm are null and void. But of course, there is no consequence if nobody realizes that, or knows to challeng any charges that may be made.

    TFred

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    FWIW, awhile back, York County had a CHP ordinance that mirrored the state statute, including the fingerprint option (which required a locality to enact an ordinance in order to adopt said option). When the GA rescinded the authority for localities to require fingerprints for CHPs, York decided to modify their ordinance to match the state statute, and lo and behold, the revised version looked very much like Stafford's.

    I argued for its repeal on the basis that the revised ordinance was unnecessary and conflicted with state preemption. I also had the support of the sheriff, which helped. The sheriff pointed out that they always charged CHP violations under state code because, while the County might forgo any fines levied, it was relieved of the financial burdens of incarceration and legal fees for the indigent. This made a much bigger impression on the BoS than my arguments. The ordinance was dumped.
    A law-abiding citizen should be able to carry his personal protection firearm anywhere that an armed criminal might go.

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    Quote Originally Posted by TFred View Post
    From the county's perspective, the air gun problem should be much more frightening. Their ordinance prohibiting vast areas of the county where one may legally discharge a firearm are null and void. But of course, there is no consequence if nobody realizes that, or knows to challeng any charges that may be made.
    So, after comparing 15.2-915.4. Counties, cities and towns authorized to regulate use of pneumatic guns.,
    A. A locality may prohibit, by ordinance, the shooting of pneumatic guns in any areas of the locality that are in the opinion of the governing body so heavily populated as to make such conduct dangerous to the inhabitants thereof, and may require supervision by a parent, guardian, or other adult supervisor approved by a parent or guardian of any minor below the age of 16 in all uses of pneumatic guns on private or public property. The ordinance may specify that minors above the age of 16 may, with the written consent of a parent or guardian, use a pneumatic gun at any place designated for such use by the local governing body or on private property with the consent of the owner. The ordinance may specify that any minor, whether permitted by a parent or guardian to use a pneumatic gun or not, shall be responsible for obeying all laws, regulations and restrictions governing such use.

    with

    Stafford code 26.16-20,
    in particular 26-17's theme, "It shall be unlawful for any person willfully to shoot or discharge any firearm or bow within or into any of the shooting-prohibited areas of Stafford County, designated as such in section 26-18, following."

    It might be that the specified element in VA Code, "in any areas of the locality that are in the opinion of the governing body so heavily populated as to make such conduct dangerous to the inhabitants thereof, etc"
    that triggers VA code exemption 15.2-915.4 (B) No such ordinance authorized by subsection A shall prohibit the use of pneumatic guns at facilities approved for shooting ranges, on other property where firearms may be discharged, or on or within private property with permission of the owner or legal possessor thereof when conducted with reasonable care to prevent a projectile from crossing the bounds of the property.

    is "skillfully" avoided in Stafford's code, even if logically present. So, Stafford has ordinances against pneumatics, just none that were admittedly, specifically stated to be of the type in (A) of 15.2-915.4 that would then have an exemption attached via (B).

    Quote Originally Posted by TFred View Post
    Their ordinance prohibiting vast areas of the county where one may legally discharge a firearm are null and void.
    Dunno of any prohibitions for local gov't from restricting against bullet/powder firearms' discharges.
    15.2-915 addresses governing, "the purchase, possession, transfer, ownership, carrying, storage or transporting of firearms, ammunition, or components or combination thereof", no discharging included on the "watch" list.



    Quote Originally Posted by gutshot View Post
    Not if they effectively remove qualified immunity and authorize both criminal and civil penalties.

    15.2-915. Control of firearms; applicability to authorities and local governmental agencies.
    C. In addition to any other relief provided, the court may award reasonable attorney fees, expenses, and court costs to any person, group, or entity that prevails in an action challenging (i) an ordinance, resolution, or motion as being in conflict with this section or (ii) an administrative action taken in bad faith as being in conflict with this section.

    Not sure there's any damages awardable to the civilian, but there appears to be some semi-guaranteed fees for a lawyer



    Quote Originally Posted by 2a4all View Post
    I argued for its repeal on the basis that the revised ordinance was unnecessary and conflicted with state preemption. I also had the support of the sheriff, which helped. The sheriff pointed out that they always charged CHP violations under state code because, while the County might forgo any fines levied, it was relieved of the financial burdens of incarceration and legal fees for the indigent. This made a much bigger impression on the BoS than my arguments. The ordinance was dumped.
    Excellent!
    Last edited by ChristCrusader; 03-11-2014 at 12:14 AM. Reason: avoiding double+ posting

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    Quote Originally Posted by ChristCrusader View Post
    So, after comparing 15.2-915.4. Counties, cities and towns authorized to regulate use of pneumatic guns.,
    A. A locality may prohibit, by ordinance, the shooting of pneumatic guns in any areas of the locality that are in the opinion of the governing body so heavily populated as to make such conduct dangerous to the inhabitants thereof, and may require supervision by a parent, guardian, or other adult supervisor approved by a parent or guardian of any minor below the age of 16 in all uses of pneumatic guns on private or public property. The ordinance may specify that minors above the age of 16 may, with the written consent of a parent or guardian, use a pneumatic gun at any place designated for such use by the local governing body or on private property with the consent of the owner. The ordinance may specify that any minor, whether permitted by a parent or guardian to use a pneumatic gun or not, shall be responsible for obeying all laws, regulations and restrictions governing such use.

    with

    Stafford code 26.16-20,
    in particular 26-17's theme, "It shall be unlawful for any person willfully to shoot or discharge any firearm or bow within or into any of the shooting-prohibited areas of Stafford County, designated as such in section 26-18, following."

    It might be that the specified element in VA Code, "in any areas of the locality that are in the opinion of the governing body so heavily populated as to make such conduct dangerous to the inhabitants thereof, etc"
    that triggers VA code exemption 15.2-915.4 (B) No such ordinance authorized by subsection A shall prohibit the use of pneumatic guns at facilities approved for shooting ranges, on other property where firearms may be discharged, or on or within private property with permission of the owner or legal possessor thereof when conducted with reasonable care to prevent a projectile from crossing the bounds of the property.

    is "skillfully" avoided in Stafford's code, even if logically present. So, Stafford has ordinances against pneumatics, just none that were admittedly, specifically stated to be of the type in (A) of 15.2-915.4 that would then have an exemption attached via (B).
    Quite simply: No.

    Paragraph A is the general prohibition. Paragraph B provides for the limit of the authority of any ordinance allowed in Paragraph A to ensure that it DOES allow for pneumatic guns to be used wholly within the bounds of private property with the stated provisions. Laws are not generally intended to be tricky, although they do certainly end up that way sometimes. This one was crystal clear in its intent, and in it's implementation.

    Stafford is violating state code. Period.

    [ETA: Suggest you also read Chapter 832, which is linked at the bottom of the page for 15.2-915. The Chapter is the actual law that was passed. See Paragraph 2. Paragraph 1 gives the changes to the text of the law. Paragraph 2, which is not listed in the law itself, states that if a jurisdiction does not update their ordinance, it is invalid.]

    TFred
    Last edited by TFred; 03-11-2014 at 12:28 AM.

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    Quote Originally Posted by TFred View Post
    [ETA: Suggest you also read Chapter 832, which is linked at the bottom of the page for 15.2-915. The Chapter is the actual law that was passed. See Paragraph 2. Paragraph 1 gives the changes to the text of the law. Paragraph 2, which is not listed in the law itself, states that if a jurisdiction does not update their ordinance, it is invalid.]
    I'm confused. How did the Governor's recommendation to add paragraph 2 to SB757, which was approved and passed, come to disappear disappear from 15.2-915?!

    But regardless, even if old restrictions were repealed, new ones could be installed, avoiding exemptions from 15.2-915(B) by avoiding restrictions of the (A) type.

    I still think that (B) No such ordinance authorized by subsection A... applies to all the expemtionables in (B).

    But as expressed elswhere, I tend to start stumbling with these lists with single qualifiers, and start wondering which elements on the list the qualifier applies to, sigh
    Last edited by ChristCrusader; 03-11-2014 at 01:04 AM.

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    Quote Originally Posted by ChristCrusader View Post
    I'm confused. How did the Governor's recommendation to add paragraph 2 to SB757, which was approved and passed, come to disappear disappear from 15.2-915?!
    I will admit this one is a little confusing. Go back and read the Chapter 832 link again. THAT is the law that was passed, and it is still there in its entirety. See the "832" reference link at the bottom of the page for 15.2-915.4. Those references aren't there just to take up space, they point us to the sources for the changes made to the specific law over the years. (Also, make sure you include the .4, as the law without it is completely different.) The law that was passed (Chapter 832) has two paragraphs. Paragraph #1 states how the already existing law 15.2-915.4 will be changed. Paragraph #2 (which was the Governor's recommendation) adds teeth by rendering any local ordinances that do not comply with the changes described in Paragraph #1 to be invalid. Paragraph #2 did not make any changes to the text of 15.2-915.4, so it does not show up in the Code when you read that Section. But it is still on the books, as evidenced in Chapter 832.

    But regardless, even if old restrictions were repealed, new ones could be installed, avoiding exemptions from 15.2-915(B) by avoiding restrictions of the (A) type.

    I still think that (B) No such ordinance authorized by subsection A... applies to all the expemtionables in (B).

    But as expressed elswhere, I tend to start stumbling with these lists with single qualifiers, and start wondering which elements on the list the qualifier applies to, sigh
    You are wrapping this stuff so tight around the axle, I'm having trouble even following what you are saying. Perhaps it would help to remind you that Virginia is a Dillon Rule state, which in very simple terms means that all local ordinances must derive their authority from state law. Paragraph A is the only place in the code that I know of that allows localities to address the discharge of pneumatic guns. There can be no other ordinances outside of what they are permitted to write based on Paragraph A. So all your other concerns are moot. I think. Like I said, what you wrote is really confusing me.

    TFred
    Last edited by TFred; 03-11-2014 at 01:21 AM.

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    Quote Originally Posted by TFred View Post
    I will admit this one is a little confusing. Go back and read the Chapter 832 link again. THAT is the law that was passed, and it is still there in its entirety. See the "832" reference link at the bottom of the page for 15.2-915.4. Those references aren't there just to take up space, they point us to the sources for the changes made to the specific law over the years. (Also, make sure you include the .4, as the law without it is completely different.) The law that was passed (Chapter 832) has two paragraphs. Paragraph #1 states how the already existing law 15.2-915.4 will be changed. Paragraph #2 (which was the Governor's recommendation) adds teeth by rendering any local ordinances that do not comply with the changes described in Paragraph #1 to be invalid. Paragraph #2 did not make any changes to the text of 15.2-915.4, so it does not show up in the Code when you read that Section. But it is still on the books, as evidenced in Chapter 832.
    Ahhhhhh, with fresh eyes and coffee'd brain this morning, I see that the (1) and (2) designations of Chapter 832 were not part of 15.2-915.4, only part of the Act to amend, ordering: 1. Amend the statute, 2. Nullify the contradicting previous ordinances; and then we subsequently see in 15.2-915.4 the amended statute as directed by #1. Whew! Thanks for patiently sticking with me that til I got it. Hadn't seen something like that before, so something new learned


    Quote Originally Posted by TFred View Post
    You are wrapping this stuff so tight around the axle, I'm having trouble even following what you are saying. Perhaps it would help to remind you that Virginia is a Dillon Rule state, which in very simple terms means that all local ordinances must derive their authority from state law. Paragraph A is the only place in the code that I know of that allows localities to address the discharge of pneumatic guns. There can be no other ordinances outside of what they are permitted to write based on Paragraph A. So all your other concerns are moot. I think. Like I said, what you wrote is really confusing me.
    stick with me as I try again this morning, please
    I was unaware of the concept of a Dillon Rule state, so #2 something learned in your one post, so thank you for that too; but my perception related to that would be that:

    15.2-1425. Actions by localities.
    The governing body of every locality in the performance of its duties, obligations and functions may adopt, as appropriate, ordinances, resolutions and motions

    which opens the door wide open allowing localities to prohibit anything, and then specific options are closed elsewhere by the code, like in:

    • 15.2-915. Control of firearms; applicability to authorities and local governmental agencies (which does not mention discharging)
    • 15.2-915.4. Counties, cities and towns authorized to regulate use of pneumatic guns


    Sooo, I see no all-encompassing code that universally removes a locale's ability to prohibit pneumatics' discharging; therefore, I'm starting from the expectation that locale's can restrict pneumatics' discharges in any fashion that they want.

    Enter paragraph A of 15.2-915.4 which only addresses prohibiting the discharging of firearms in areas designated as high-density populated areas, merely one slice of all the reasons they could prohibit. However, if they pass an ordinance under A's scope, then exemptions from (B) kick in. (B) exemptions only apply to (A) prohibitions. No mandatory exemptions are provided for prohibitions passed for other reasons, and there's no apparent code that overall constrains locales from prohibiting for other-than-(A) reasons.

    Not saying that the current verbage honors intentions or wishes, but coming into it without expecting anything like I am, I'm not seeing what you are. What you describe as seeing makes sense of what it should say, but as yet I'm not seeing your vision being achieved, without establishing somewhere that locales can't make any rules against pneumatics' discharging, then giving back a little in (A), which would trigger (B) exemptions.
    Last edited by ChristCrusader; 03-11-2014 at 09:06 AM.

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    Looks to me like an old version of the concealed weapon statute, and probably unenforceable because it doesn't track the current version. As to the so-called "pre-emption" statute (which is not about pre-emption at all), they can have a statute to say anything they want, as a practical matter, because unless there's some attempt to enforce it, no one has any damages. You could sue and get an injunction against them if you want to spend the money on it, probably.
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    Quote Originally Posted by user View Post
    Looks to me like an old version of the concealed weapon statute, and probably unenforceable because it doesn't track the current version. As to the so-called "pre-emption" statute (which is not about pre-emption at all), they can have a statute to say anything they want, as a practical matter, because unless there's some attempt to enforce it, no one has any damages. You could sue and get an injunction against them if you want to spend the money on it, probably.
    repeating...
    " 15.2-915. Control of firearms; applicability to authorities and local governmental agencies.
    C. In addition to any other relief provided, the court may award reasonable attorney fees, expenses, and court costs to any person, group, or entity that prevails in an action challenging (i) an ordinance, resolution, or motion as being in conflict with this section or (ii) an administrative action taken in bad faith as being in conflict with this section.

    Not sure there's any damages awardable to the civilian, but there appears to be some semi-guaranteed fees for a lawyer
    "

    Want to represent my challenge and earn a few coin and feathers, "user" ?

    P.S., hint: we've spoken somewhat at length on the phone recently about options for arming adults at a private school...
    Last edited by ChristCrusader; 03-11-2014 at 11:35 AM.

  19. #19
    Regular Member TFred's Avatar
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    Quote Originally Posted by ChristCrusader View Post
    Sooo, I see no all-encompassing code that universally removes a locale's ability to prohibit pneumatics' discharging; therefore, I'm starting from the expectation that locale's can restrict pneumatics' discharges in any fashion that they want.
    And because of the Dillon Rule, your assessment is backwards. You don't need to look for laws that prohibit localities from doing something, you need to look for laws that allow them to do something. 15.2-915.4 is the code that allows them to prohibit the discharge of pneumatic guns. Any local ordinance must adhere to the restrictions found there.

    [ETA: And yes, I get your point about the general management code sections, etc... But if the General Assembly wanted that portion of code to cover the discharge of pneumatic guns, then there would be no need for 15.2-915. Courts take code very seriously, they assume that if it's there, the General Assembly put it there for a reason.]

    TFred
    Last edited by TFred; 03-11-2014 at 12:20 PM.

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    Quote Originally Posted by TFred View Post
    And because of the Dillon Rule, your assessment is backwards. You don't need to look for laws that prohibit localities from doing something, you need to look for laws that allow them to do something. 15.2-915.4 is the code that allows them to prohibit the discharge of pneumatic guns. Any local ordinance must adhere to the restrictions found there.

    [ETA: And yes, I get your point about the general management code sections, etc... But if the General Assembly wanted that portion of code to cover the discharge of pneumatic guns, then there would be no need for 15.2-915. Courts take code very seriously, they assume that if it's there, the General Assembly put it there for a reason.]

    TFred
    mmmmm, intent is difficult to impose over actual verbage, eh?
    • 15.2-1425 Actions by localities. is what allows them to prohibit everything.
    • 15.2-915. Control of firearms; applicability to authorities and local governmental agencies, doesn't address the discharging of anything
    • 15.2-915.4 Counties, cities and towns authorized to regulate use of pneumatic guns, is what addresses the specific prohibitions that (A) discusses.

    There's a failure of the verbage to achieve your reasonable wishes, difficult to correct in court by appealing to intent, when your desired intent could have been achieved with additional or alternate clear verbage.

    Especially when seeking a ripple effect to extend code to affect ordinance, I think it'd be important to correctly establish the code first, then go back and achieve the intent with the ordinance.

    If you have to overlook verbage and rely on intent, I think that's too shaky of a ground to secure your right out into the locales' ordinances. I'm all for correcting the code's verbage to activtate the obviously reasonable exemption of B to more scenarios than just the limited (A) restrictions, but right now (B) admits itself that it only applies to (A) :
    B. "No such ordinance authorized by subsection A..."

    I'd be with you to achieve the goal though.
    Last edited by ChristCrusader; 03-11-2014 at 12:54 PM.
    *I am not a lawyer. Nothing from me shall be construed as a magic cloak of legal advice. It's ultimately your tucas that's on the line. Keep examining the law anyway. The gov't, made up of people like us, is supposed to work for us, not against us. Let's find, correct, and avoid the wrongs before they're actively used against us, or we become innocently trapped by them. We're to be the masters. Let's vigilantly keep tabs on our servants who seek to rule us.

  21. #21
    Regular Member TFred's Avatar
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    Quote Originally Posted by ChristCrusader View Post
    mmmmm, intent is difficult to impose over actual verbage, eh?
    15.2-915.4 (A) and (B) serve a purpose, just not to the extent we'd like. That's a fault of the verbage, difficult to correct in court by appealing to intent, when your desired intent could have been achieved with additional or alternate clear verbage.

    Especially when seeking a ripple effect to extend code to affect ordinance, I think it'd be important to correctly establish the code first, then go back and achieve the intent with the ordinance.

    If you have to overlook verbage and rely on intent, I think that's too shaky of a ground to secure your right out into the locales' ordinances. I'm all for correcting the code's verbage to activtate the obviously reasonable exemption of B to more scenarios than just the limited (A) restrictions, but right now (B) admits itself that it only applies to (A) :
    B. "No such ordinance authorized by subsection A..."

    I'd be with you to achieve the goal though.
    Well, no, I think you are probably the only person in the state who sees it this way. There are no localities that I know of who have managed to circumvent the clearly stated requirements of 15.2-915.4. There are a handful of localities who have chosen to not update their local ordinances, but they are also subject to the consequences of that choice, as their ordinances are at this point, invalid.

    Unless you can cite some evidence to support your rogue interpretation, with all due respect, I think we're done here.

    TFred

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    Quote Originally Posted by TFred View Post
    Well, no, I think you are probably the only person in the state who sees it this way. There are no localities that I know of who have managed to circumvent the clearly stated requirements of 15.2-915.4.
    As you pointed out in another thread, Chesapeake, for example, has added to their ordinance

    "(h)
    Notwithstanding any other provision in this section, it shall be permissible to discharge pneumatic guns (air-propelled rifles and pistols) at facilities approved for shooting ranges, on other property where firearms may be lawfully discharged, or on or within private property with permission of the owner or legal possessor thereof when conducted with reasonable care to prevent a projectile from crossing the bounds of the property..."

    making it clear... -ish

    except they finish it with, "in accordance with Virginia Code 15.2-915.4.B." which to me makes it subservient and limited to only (A)'s limited restriction.

    thanks for the analyzing and new info along the way,
    thanks for your support on Stafford's handgun carrying ordinance

    Duh-afterthought:
    add the word, "only" into,

    A. A locality may -->ONLY<-- prohibit, by ordinance, the shooting of pneumatic guns in any areas of the locality that are in the opinion of the governing body so heavily populated...

    and suddenly most of it makes more sense to me

    except (B) still only applies to (A), but now only (A) can exist in the realm of pneumatic prohibitions.
    Last edited by ChristCrusader; 03-11-2014 at 01:13 PM.
    *I am not a lawyer. Nothing from me shall be construed as a magic cloak of legal advice. It's ultimately your tucas that's on the line. Keep examining the law anyway. The gov't, made up of people like us, is supposed to work for us, not against us. Let's find, correct, and avoid the wrongs before they're actively used against us, or we become innocently trapped by them. We're to be the masters. Let's vigilantly keep tabs on our servants who seek to rule us.

  23. #23
    Regular Member TFred's Avatar
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    Quote Originally Posted by ChristCrusader View Post
    As you pointed out in another thread, Chesapeake, for example, has added to their ordinance

    "(h)
    Notwithstanding any other provision in this section, it shall be permissible to discharge pneumatic guns (air-propelled rifles and pistols) at facilities approved for shooting ranges, on other property where firearms may be lawfully discharged, or on or within private property with permission of the owner or legal possessor thereof when conducted with reasonable care to prevent a projectile from crossing the bounds of the property..."

    making it clear... -ish

    except they finish it with, "in accordance with Virginia Code 15.2-915.4.B." which to me makes it subservient and limited to only (A)'s limited restriction.

    thanks for the analyzing and new info along the way,
    thanks for your support on Stafford's handgun carrying ordinance

    Duh-afterthought:
    add the word, "only" into,

    A. A locality may -->ONLY<-- prohibit, by ordinance, the shooting of pneumatic guns in any areas of the locality that are in the opinion of the governing body so heavily populated...

    and suddenly most of it makes more sense to me

    except (B) still only applies to (A), but now only (A) can exist in the realm of pneumatic prohibitions.
    Do you know what the word "notwithstanding" means?

    [ETA: And again, because of the Dillon Rule, I think it's safe to say that one may infer "only", if there are no other sections of code that specifically grant that same, or contradicting authority.]

    TFred
    Last edited by TFred; 03-11-2014 at 01:18 PM.

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    Quote Originally Posted by TFred View Post
    Do you know what the word "notwithstanding" means?
    I thought I did: 'Unless specifically stated otherwise in this section...', but with the caveat that the 'section' to which it's referring is just the Chesapeake ordinance Sec. 46-42. Discharging firearms, so it's not cross applicable to other jurisdictions, unless of course they reference it.

    Quote Originally Posted by TFred View Post
    [ETA: And again, because of the Dillon Rule, I think it's safe to say that one may infer "only", if there are no other sections of code that specifically grant that same, or contradicting authority.]

    15.2-1425 Actions by localities, is what specifically allows them to prohibit everything they want, unless specifically stopped elsewhere.
    Last edited by ChristCrusader; 03-11-2014 at 01:52 PM.
    *I am not a lawyer. Nothing from me shall be construed as a magic cloak of legal advice. It's ultimately your tucas that's on the line. Keep examining the law anyway. The gov't, made up of people like us, is supposed to work for us, not against us. Let's find, correct, and avoid the wrongs before they're actively used against us, or we become innocently trapped by them. We're to be the masters. Let's vigilantly keep tabs on our servants who seek to rule us.

  25. #25
    Regular Member TFred's Avatar
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    Quote Originally Posted by ChristCrusader View Post
    I thought I did: 'Unless specifically stated otherwise in this section...', but with the caveat that the 'section' to which it's referring is just the Chesapeake ordinance Sec. 46-42. Discharging firearms, so it's not cross applicable to other jurisdictions, unless of course they reference it.

    15.2-1425 Actions by localities, is what specifically allows them to prohibit everything they want, unless specifically stopped elsewhere.
    You missed my point. Notwithstanding means "in spite of", which in this context means that no matter what it says elsewhere within the specified scope, this is the code you follow.

    You're still stuck on that other section, and all I can offer you is this: Since 2011, other than the handful of stragglers who now have invalid ordinances on their books, every other jurisdiction has complied with the new law, including several jurisdictions that were beyond angry about it. I assure you, if your interpretation were correct, then those angry jurisdictions would have ignored the law, rather than obeyed it.

    To be frank, if you still think you're correct, then you must believe your legal skillz are greater than the jurisdictional attorneys of about a half-dozen cities and counties who hate the fact that they have to allow their citizens to shoot BB guns and paintball guns in their back yards. Maybe you think highly of yourself, and that's fine and dandy, but in the face of incontrovertible evidence... I'm just sayin...

    TFred

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